Magic Words, Magic Rights

Knowing my love of police “magic words,” a reader pointed me to a thread on the subreddit  Bad Cop No Donut on whether there is anything to be done when a police officer claims he “smells pot” in a car.


Or does the 4th Amendment REALLY vanish with those magic words?


I’ve been stopped and the cop claimed he smelled pot, when, at the time, I hadn’t touched the stuff in years. I told him I’d consent to a search if he apologized for wasting both of our time when he didn’t find anything. He searched, didn’t find anything, and I was on my way without an apology and a “verbal warning” to fix my tail light


Do you ask for another officer’s opinion?


Do you tell the officer “bullshit”?


I’m just trying to help some people know what to do in this situation.


Initially, it helps for have a basic understanding of the law as it currently exists. When a cop says he “smells pot,” he is invoking the  automobile exception to the warrant requirement, which is based on exigent circumstances. Since a person can drive away, and thereby evade arrest and seizure of evidence of a crime in a car, the Supreme Court crafted the exception fin Carroll v. United States, a 1925 opinion about bootleggers getting away from the revenuers, which has done more harm to the 4th Amendment than perhaps any other case.

Since smell can’t be captured and bottled for later presentation to a judge, the only “proof” of what an officer smelled is the officer’s testimony. If he says so, it becomes real, and that’s why they are magic words. Other than proving impossibility or incredibility, there is essentially nothing that can be done to challenge what the cop says he smelled. More importantly, even if a subsequent search turns up no pot, that doesn’t mean he didn’t smell what he smelled. The officer will testify about his training and experience in smelling pot, and yet he can be mistaken. The law doesn’t require the cop to be right.

But the discussion thread about the magic words is where a grave misunderstanding about the system becomes clear.  The problem derives from the absence of any marijuana in the car. The cop says he smelled it. This gives rise to probable cause to search and the automobile exception allows the cop to do so without a warrant. A search follows, and it can be as intrusive as the cop chooses to make it. By intrusive, it can include dismantling your brand new Maserati into a million pieces on the side of the road and, when it’s over, leaving it there.

So the cop smells pot, searches and comes up empty. No apology. No help putting your Maserati back together. He drives away without so much as a tip o’ the hat. This is where people don’t seem to understand how constitutional rights work.

There are no elves in the backroom enforcing your constitutional rights. Had the police officer found something in the car to justify an arrest, the question of the constitutionality of the search could be hashed out in court in a suppression motion and hearing.  Bear in mind that the cop may have claimed to smell marijuana, but that doesn’t mean pot is what was found. Maybe other drugs. Maybe an illegal gun. Maybe a dead body. The smell of pot claim serves to except the search from the warrant requirement, and whatever comes of the search is the basis for the subsequent arrest.

But the cop finds nothing. Nada. Zip. You are clean and, surrounded by the pieces of your brand new Maserati, free to go.  What then?

This is where people get confused. That’s it? Don’t the cops have to, you know, do something?

No red light goes off in the backroom of the constitutional elves. Actually, there is no such backroom. There’s nothing. As the cop drives away, that’s the end of the encounter, unless the person chooses to take action to contest the violation of his constitutional rights, such as a §1983 claim.

The problem there, of course, is that the cop, invoking the magic words that he “smelled pot,” will very likely prevail despite the fact that he found nothing. You won’t make it past summary judgment. More significantly, no lawyer will take the case on contingency, meaning that you will have to pay to play, and it will prove to be an expensive longshot to even make the effort to enforce your constitutional rights.

Consider the plight of people stopped in the street in New York City under the stop & frisk program, where the most generous view is that the police take action against 12% of the people stopped. They’ve performed millions of stops, and a tiny fraction have resulted in people going before a judge, where they can contest what happened. The others, the millions of people stopped and searched where nothing was found, just walk away, having been violated, humiliated and treated like pond scum.

The Constitution is not a self-effectuating document. It requires someone to act upon it to challenge police conduct. Otherwise, they are words without meaning, easily thwarted by police invoking the myriad exceptions the courts have provided.  And here’s an even worse secret: they don’t even have to use magic words unless they ultimately find something, arrest a person and want to use it as evidence in court.

They get this. Most people don’t. Most people harbor a naïve belief that, despite everything they know about how the police function, there is still some thread of honesty woven through their conduct that somehow makes them behave in accordance with the Constitution.

There are some excellent videos and writings about how to best conduct oneself to properly invoke constitutional rights and to create countervailing evidence to support one’s invocation. The pervasiveness of video is a huge factor in showing that police have manufactured claims and false allegations, and these go a long way in keeping police clean where in the past they could make up anything they want to and there would be no way to challenge them.

But these rights we love so dearly don’t happen on their own. Someone has to make them happen. We make them happen.  And if we don’t, then we’re left on the side of the road with our Maserati in pieces cursing.  The cops have magic words, but constitutional rights aren’t magic. They only happen if we make them.

12 comments on “Magic Words, Magic Rights

  1. steve magas

    The high cost of actually using your inalienable constitutional rights can also include the cost of lawyering yourself out of trumped up felony charge and paying the 20% of your 80/20 health care plan to cover the stitches or other wound/injury care you receive due to the pummeling you took “resisting arrest” … Attempting to use your “self evident” rights is not for the meek…

  2. SHG

    Cops prefer to call that a “tuning up,” which sounds far less nefarious than a pummeling.

  3. Eric L. Mayer

    As of 8:22AM today, 73.46% of all Americans believe that asserting your rights to the police means you are being an unreasonable jerk and deserve no rights, Constututional, god-given, or otherwise.

    Just thought I’d let you know. That way, everyone can say they heard it here first.

  4. SHG

    Well, they do risk their lives for us. The least we can do is comply with their every command.

  5. J. Alfred Brown

    I was expecting a bit more, SHG

    maybe ask the cop if he is fabricating evidence …??

    is he a Brady cop …??

  6. SHG

    This is not legal advice. You are, of course, free to do whatever you want. Just be ready to duck and weave.

  7. Henry

    So the writer says that we have to “make things happen” to enforce our constitutional rights. He also says that our only legal avenues to make these things happen “won’t make it past summary judgment” and will be an “expensive longshot.” So what is the purpose of writing this article? How else are we supposed to “make things happen?” Is the author implying that it’s time to shoot cops?

  8. SHG

    Read harder. Not everyone understand the first time round, and some won’t understand ever.

    But just in case, let me be expressly clear about one thing: No, the author is not implying it’s time to shoot cops. That your mind should go there at all is disturbing.

  9. R. shakleford

    The problem goes farther back even before “smelling pot” when it is allowed for a cop to start investigating you and checking your papers simply because they were able to pull you over for a simple traffic stop. Once they pull you over…they can fish for whatever they want. You are now a suspect for any and all crimes committed that are unsolved. It is not a stretch to think a cop can now come up to your (home) door because of your lawn being too long (ordinance)…smelling pot and searching your home…Slippery slope.

  10. SHG

    What I think you’re refering to is the Whren decision, where the police are allowed to engage in pretextual stops. Yes, that’s a problem. Just not the problem that’s the subject of this post. It’s unhelpful to be so wildly imprecise and conflate various issues.

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